Citation Nr: 0934905
Decision Date: 09/17/09 Archive Date: 09/23/09
DOCKET NO. 07-25 873 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in White River
Junction, Vermont
THE ISSUES
1. Entitlement to an initial compensable rating for a left
ankle strain.
2. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Vermont Office of Veterans'
Affairs
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
F. Yankey, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1996 to October
1996, from September 2001 to September 2002, and from
February 2003 to August 2003. This case comes before the
Board of Veterans' Appeals (Board) on appeal of rating
decisions of the Department of Veterans Affairs (VA) Regional
Office (RO) in White River Junction, Vermont.
The Veteran presented testimony at a Video Conference Hearing
chaired by the undersigned Veterans Law Judge in February
2009. A transcript of the hearing is associated with the
Veteran's claims folder.
The Board notes that in a June 2007 rating decision, the RO
denied the Veteran's claims for an initial compensable rating
for a smallpox vaccination scar, service connection for a
right shoulder condition, service connection for PTSD, and an
initial compensable rating for a left ankle strain. In the
same rating decision, the RO also granted the Veteran service
connection for a left foot strain with mild pes planus, and
service connection for a left knee strain.
In his August 2007 VA Form 9, the Veteran indicated that he
was only appealing the issues of service connection for a
right shoulder condition, service connection for PTSD, and a
compensable rating for a left ankle strain.
The Board also notes that during his February 2009 Video
Conference hearing, the Veteran indicated that he wished to
withdraw his appeal for service connection for a right
shoulder condition.
Accordingly, the Board finds that the only issues on appeal
before the Board at this time are service connection for PTSD
and an initial compensable rating for a left ankle strain.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the Veteran
if further action is required.
REMAND
The Board notes that at the time of his Video Conference
hearing in February 2009, the Veteran submitted additional
medical evidence related to his claim for service connection
for PTSD. See August 2007 USAF Physical Evaluation Board
report and Line of Duty Determination. He has not waived his
right to have this evidence initially considered by the RO.
Moreover, his representative requests that the case be
remanded for RO consideration of the newly submitted
evidence. See February 2009 statement.
The Board also notes that the Veteran contends that the
currently assigned noncompensable evaluation does not
accurately reflect the severity of his left ankle disability.
The record reflects that the Veteran was afforded his most
current VA examination to determine the degree of severity of
his left ankle disability in May 2007. The VA examiner
indicated in her report that the Veteran complained of only
mild discomfort at an intensity of 2-3/10 on weight-bearing
of the left ankle. She also reported that the Veteran denied
stiffness, weakness, heat, swelling, fatigue or lack of
endurance of the left foot, as well as any incapacitating
flares of his left foot. According to the VA examiner's
report, on physical examination of the Veteran's left foot
there was no weakness noted of the foot or ankle area and
there was excellent motion and manipulation of the Achilles
tendon and the ankle, without pain. The examiner also noted
that examination of the left foot revealed tenderness of the
dorsum of the foot over the third, fourth and fifth
metatarsals. However, there was no heat, swelling,
tenderness of the foot, metatarsals and joints of the digits.
Furthermore, according to the examiner, although the Veteran
was unable to actively flex the third, fourth, fifth MTP, PIP
and DIP joints, the joints could be passively flexed by the
examiner without pain. The examiner also noted that there
was no tenderness of any of the digits, nor of the joints,
and active and passive flexion of the joints of the first and
second toes on the left were within normal limits.
The Veteran argues that the May 2007 VA examiner refused to
accept his overt expressions of pain during her physical
examination of his left ankle. Specifically, he claims that
the VA examiner "accused him of lying about pain during her
examination of his ankle, even though he insisted at the time
that he was experiencing pain when she rotated and flexed the
joint." See February 2009 statement. Contrary to what the
May 2007 examiner reported, the Veteran contends that he
experiences "excruciating" pain all day, as well as a
constant ache in the ankle, which is aggravated by prolonged
standing. He also claims to have a constant popping in the
ankle that is extremely painful. The Veteran also claims to
experience occasional swelling of the ankle when standing on
it all day. In addition, he claims that the pain in his left
ankle gets worse with continued use, and that range of motion
for his left ankle is limited compared to his right ankle.
In essence, the Veteran contends that the evaluation for his
left ankle disability should be higher based on functional
impairment due to pain in accordance with 38 C.F.R. § 4.59.
See February 2009 Video Conference hearing transcript.
When evaluating disabilities of the musculoskeletal system,
an evaluation of the extent of disability present also
includes consideration of the functional impairment of the
Veteran's ability to engage in ordinary activities, including
employment, and the effect of pain on the functional
abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2008); DeLuca
v. Brown, 8 Vet. App. 202, 204-06 (1995). In other words,
when rated for limitation of motion, a higher rating may be
assigned if there is additional limitation of motion from
pain or limited motion on repeated use of the joint. A
finding of functional loss due to pain must be "supported by
adequate pathology and evidenced by the visible behavior of
the claimant." 38 C.F.R. § 4.40 (2008).
The Board also notes that the Veteran has not been provided
the notice required under 38 U.S.C.A. § 5103(a) (West 2002).
See Dingess v. Nicholson, 19 Vet. App. 473 (2006) and
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).
Accordingly, the case is REMANDED to the RO or the Appeals
Management Center (AMC) in Washington, D.C., for the
following actions:
1. Send the Veteran a letter providing
the notice required under 38 U.S.C.A. §
5103(a) (West 2002) as required by
Dingess v. Nicholson and Vazquez-Flores
v. Peake.
2. Undertake appropriate development to
obtain any pertinent evidence identified
but not provided by the Veteran. If it
is unsuccessful in obtaining any such
pertinent evidence identified by the
Veteran, it should so inform the Veteran
and his representative and request them
to provide the outstanding evidence.
3. Arrange for the Veteran to be given
a VA examination by a physician with
appropriate expertise to determine the
current severity and manifestations of
his service-connected left ankle
disability.
The claims folder, to include a copy of
this Remand, must be made available to
and reviewed by the examiner, and any
indicated studies should be performed.
A complete rationale should be given
for all opinions and conclusions
expressed. The examiner should also
provide an opinion concerning the
impact of the service-connected
disability on the Veteran's ability to
work.
All indicated studies, including
X-rays and range of motion studies
in degrees, should be performed.
In reporting the results of range of
motion testing, the examiner should
identify any objective evidence of
pain and the specific excursion(s)
of motion, if any, accompanied by
pain. To the extent possible, the
examiner should assess the degree of
severity of any pain.
Tests of joint movement against
varying resistance should be
performed. The extent of any
incoordination, weakened movement
and excess fatigability on use
should also be described by the
examiner. If feasible, the examiner
should assess the additional
functional impairment due to
weakened movement, excess
fatigability, or incoordination in
terms of the degree of additional
range of motion loss.
The examiner should also express an
opinion concerning whether there
would be additional limits on
functional ability on repeated use
or during flare-ups (if the Veteran
describes flare-ups), and, to the
extent possible, provide an
assessment of the functional
impairment on repeated use or during
flare-ups. If feasible, the
examiner should assess the
additional functional impairment on
repeated use or during flare-ups in
terms of the degree of additional
range of motion loss.
The examiner should also provide an
opinion concerning the impact of the
disability on the Veteran's ability
to work. The rationale for all
opinions expressed should also be
provided.
4. Readjudicate the Veteran's claims in
view of all additional evidence that may be
obtained and the records received at the
February 2009 hearing, including the August
2007 Physical Evaluation Board report and
Line of Duty Determination. If the benefit
sought on appeal is not granted, he and his
representative should be provided a
supplemental statement of the case and an
appropriate period of time for response.
The case should then be returned to the
Board for further consideration, if
otherwise in order.
The Veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
JOHN L. PRICHARD
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).